Weekly Update Volume 31, Issue 2

The U.S. Supreme Court held that the U.S. Army Corps of Engineers exceeded its CWA §404(a) authority to regulate the discharge of dredged or fill material into U.S. navigable waters when, under the Migratory Bird Rule, it extended the definition of "waters of the United States" to include nonnavigable, intrastate, isolated waters used as migratory bird habitat. Therefore, the Court reversed a circuit court decision upholding the Corps' refusal to grant several Illinois municipalities a §404(a) permit for the development of a solid waste disposal site on an abandoned sand and gravel pit that contained isolated, seasonal ponds used by migratory birds. The CWA's text does not support the Migratory Bird Rule. Although in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985), the Court stated that Congress intended the CWA to regulate some nonnavigable waters, that holding was based in large measure on Congress' acquiescence to the Corps' regulations interpreting the CWA to cover wetlands adjacent to navigable waters. Thus, the Court in Riverside Bayview Homes found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands inseparably bound up with the waters of the United States. To find for the Corps here, the Court would have to hold that the Corps' jurisdiction extends to ponds that are not adjacent to open water, but the CWA's text will not allow this. Moreover, the Corps' original interpretation of the CWA in 1974 defined "navigable waters" to mean those waters subject to the tide that can be used for transportation or commerce. Further, Congress' failure to pass a 1977 bill that would have overturned the Corps' extension of §404(a) jurisdiction to nontraditional navigable waters did not demonstrate Congress' acquiescence to the Corps' regulations or the Migratory Bird Rule, which was not promulgated until 1986. Similarly, CWA §404(g)(1)'s reference to waters other than navigable waters gives no intimation what those "other waters" might be and, thus, does not require acceptance of the Corps' regulations. In addition, if §404(a) was not clear, deference cannot be extended to the Corps's interpretation of §404(a) under the Migratory Bird Rule. According to the Corps, the Migratory Bird Rule falls within Congress' power under the Commerce Clause. However, there are significant constitutional questions regarding the rule and no clear statement from Congress that §404(a) should reach sand and gravel pits. Permitting the Corps to claim federal jurisdiction over waters falling under the Migratory Bird Rule would result in a significant impingement of the states' traditional and primary power over land and water use. Because the CWA must be read to avoid the significant constitutional and federalism questions raised by the Corps' interpretation, deference is rejected. Justice Stevens, with Justices Souter, Ginsburg, and Breyer, dissented arguing that the Court previously held in Riverside Bayview Homes that the Corps' CWA jurisdiction extends to nonnavigable waters that are not directly adjacent to or hydrologically connected to navigable water. Further, Justice Stevens argued that the Corps' §404(a) interpretation is entitled to deference and that the Migratory Bird Rule is constitutionally valid under the Commerce Clause. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) (38 pp.).

The U.S. Supreme Court held, in a per curiam opinion, that the criminal conviction of a hazardous waste facility operator under a Pennsylvania hazardous waste statute for operating a hazardous waste facility without a permit violated the federal Due Process Clause. When the operator was convicted, he in fact had a permit, but the state argued that he deviated so dramatically from the permit's terms that he violated the statute. Subsequent to his conviction, the state supreme court reversed the conviction of the operator's partner on the grounds that deviation from a permit's terms did not constitute operating without a permit. After the operator unsuccessfully sought to have state courts set aside his conviction, he brought a federal habeas corpus action. The district court granted the operator's writ, but the court of appeals held that in the partner's case, the state supreme court has announced a new rule of law, inapplicable to the operator's final conviction. Therefore, the state court had no obligation to apply its decision retroactively to the operator. However, the Supreme Court certified to the state supreme court the question as to whether its decision in the partner's case represented a new rule of law or a clarification of the statute. The state supreme court stated that its decision in the partner's case merely clarified the statute. Therefore, because the decision in the partner's case was not new law, the operator's case presents no issue of retroactivity. The question then becomes whether, consistent with the federal Due Process Clause, the operator can be convicted for conduct that the statute as properly interpreted does not prohibit. The simple conclusion is that the operator's conviction violates the Due Process Clause, and, consequently, the court of appeals is reversed and the case remanded. Fiore v. White, No. 98-942 (U.S. Jan. 9, 2001) (4 pp.).

The Third Circuit held that the repeal and replacement of a 1996 statutory amendment governing the placement of landfills near commercial airports moots and requires vacatur of a potential landfill operator's facial attacks on the constitutionality of the amendment, but does not moot the operator's as-applied constitutional claims. The operator applied for and received permits to construct a landfill adjacent to an airport. In 1996, six years after pre-construction began, the state environmental agency determined that the landfill site contained wetlands of an exceptional value and revoked the operator's permits. The operator appealed the decision and that action is still pending in Pennsylvania state court. Also in 1996, Congress passed the Federal Aviation Reauthorization Act with an amendment placing strict limitations on the construction of landfills near commercial airports. A district court found the amendment facially unconstitutional. In 2000, Congress enacted legislation substantially modifying the 1996 amendment and significantly broadening its scope, thereby resolving many of the district court's concerns. The passage of the 2000 amendment mooted the operator's facial constitutional challenges to the 1996 amendment. The scope of the 2000 amendment is substantially broader than that of the challenged law and a declaration of unconstitutionality or injunction directed against the objectionable features of the 1996 amendment would serve no purpose today. Further, the operator's challenges do not fall within any recognized exception to the mootness doctrine. Accordingly, the district court's judgment as to the facial unconstitutionality of the 1996 amendment is vacated. There is no evidence to suggest that the 2000 amendment represents manipulation of the legislative process rather than responsible lawmaking. Additionally, the operator's as-applied constitutional claims are not mooted by the 2000 amendment, but the court does not find any violations of the operator's procedural or substantive due process rights. Khodara Environmental, Inc. v. Beckman, Nos. 99-3458 et al. (3d Cir. Jan. 17, 2001) (17 pp.).

The Tenth Circuit reversed a district court holding that collateral estoppel barred an environmental group's CWA citizen suit against EPA for failure to recognize an illegal point source. In 1995, the group alleged that a corporation's discharge of pollutants leached from waste rock piles into a river was not authorized by its NPDES permit, but the district court lacked subject matter jurisdiction over that claim. In the present case, the group claims that a 1998 EPA report's recognition of the corporation's waste rock piles as an illegal point source triggered an EPA duty under CWA §309(a)(3) to take action against the corporation. Collateral estoppel does not bar the group's second claim because the issue previously decided in the prior action is not identical to the action in the present case. The issue in the prior case concerned the group's allegations of a point source discharge that should have been taken into consideration in EPA's decision to reissue the corporation's NPDES permit. Here, the issue is whether EPA has a duty to take action once it discovers an illegal point source discharge. Further, the group did not have a full and fair opportunity to litigate the current issue in the prior action because the 1998 EPA report was issued over two years after initiation of the earlier action. Amigos Bravos v. Environmental Protection Agency, No. 99-2346 (10th Cir. Jan. 3, 2001) (4 pp.).

The D.C. Circuit dismissed as moot utilities' petitions to review four FERC orders approving three pipeline capacity sale contracts between two natural gas companies. In 1995, a customer of one gas company terminated its contract, leaving a large amount of unsubscribed capacity. To address the excess capacity, the company negotiated a settlement in 1996 with its direct customers that reduced the company's reservation charges, delayed general rate increases, and divided the capacity into three blocks. In 1997, the company then sold the three excess blocks to a second gas company through three separate two-year contracts. Each contract included a revenue reduction mechanism (RRM) that reduced the second company's minimum pay obligation if the first company sold capacity in competition with the second company's resale of the block capacity. The first company then filed for and received FERC approval of the contracts' terms. Several utilities protested claiming that the contracts, particularly the RRM, were anti-competitive and inconsistent with the 1996 settlement. Nevertheless, three subsequent separate FERC orders authorized the contracts. After the two-year contracts expired in 1999, the first company entered into a second series of FERC-approved contracts with another customer. The utilities appealed to federal court contesting the four FERC orders approving the first set of contracts. However, the utilities' appeal is moot because the contracts at issue expired in 1999. Moreover, the utilities' petition does not fall into the mootness exception for cases that are capable of repetition yet evading review. Although FERC's review of the two-year contracts at issue did not provide enough time to allow their validity to be fully litigated, the utilities did not satisfy the exception's capable of repetition element. The utilities alleged that FERC's approval of the second series of contracts demonstrates that they will be subjected to the same the anti-competitive activity. FERC, however, stated that its approval of the RRMs was case specific and that the approval of RRMs is not a continuing FERC policy. Further, FERC's method of balancing anti-competitive harm changes over time. The utilities, therefore, failed to establish a reasonable expectation that FERC's balancing method will cause future anti-competitive harm. Public Utilities Commission of the State of California v. Federal Energy Regulatory Commission, No. 99-1390 (D.C. Cir. Jan. 12, 2001) (10 pp.).

The D.C. Circuit affirmed a district court holding that an oil producers association contesting the DOI's take-or-pay oil royalties policy failed to challenge a final agency action and, therefore, the court lacked subject matter jurisdiction over the association's complaint. The association sought to prevent the DOI from collecting royalties on unrecoupable take-or-pay settlements. Thereafter, an oil company challenged the DOI's attempt to collect royalties on settlement payments made to the company. Eventually, the association's and the company's challenges were consolidated. The D.C. Circuit previously held that a DOI letter requiring royalties for take-and-pay settlements did not constitute a DOI rule, but in light of this letter and precedent, the DOI acted arbitrarily and capriciously when it sought royalties from the company. On remand, the district court implemented the circuit court's mandate to the company, but the district court held that the circuit court decision only addressed the association's claim regarding the DOI's letter, not the association's wide-ranging complaint challenging the DOI's royalty policy. The district court then properly dismissed the association's claim because the association did not face any final actions that it may challenge. The association's complaint states that it challenges the DOI's efforts to collect royalties on take-or-pay settlement payments. It is not clear what efforts are challenged, but it is clear that these efforts are not final agency actions fit for judicial review. The efforts that the association seeks to challenge do not refer to any particular DOI action, order, or regulation. Instead, the association seeks an improper generic challenge. In addition, the association never sought to join or intervene in the company's case, and there is no evidence that the company and the association impliedly consented to jointly litigate the company's challenge. Independent Petroleum Ass'n of America v. Babbitt, No. 98-5131 (D.C. Cir. Jan. 5, 2001) (9 pp.).

On remand from the U.S. Supreme Court, the Federal Circuit affirmed a Court of Federal Claims decision awarding two oil companies restitution of the full amount of bonus payments they paid to the U.S. government for 10-year renewable rights to explore for and develop oil and gas resources on tracts of the outer continental shelf offshore of North Carolina. After the companies paid for the leases, the U.S. Congress passed the OBPA, which required the DOI to delay lease implementation. The companies sued for restitution, and the Court of Federal Claims awarded full restitution. After reversal by the Federal Circuit, the U.S. Supreme Court reversed the Federal Circuit and held that the U.S. government repudiated its agreements with the companies and, thus, must give back the bonus payments. The government now argues that any restitution should be offset by the asserted reduction in the market value of the leases due to the reduced price of oil and gas at the time of the government's breach. However, reduction in market value is irrelevant to the non-breaching party's right to restitution of the full amount paid. Further, the purported loss in value of the leases is not a benefit imparted before contract repudiation that must be credited against restitution. Marathon Oil Co. v. United States, No. 97-5146 (Fed. Cir. Dec. 28, 2000) (4 pp.).

The Federal Circuit affirmed a Court of International Trade (CIT) decision denying an animal rights group's requests to issue a writ of mandamus directing the President to impose sanctions on Italy for Driftnet Act violations and to order the Secretary of Commerce to rescind his certification that Italy terminated large-scale driftnet fishing. In 1995, the CIT held that the Secretary of Commerce abused his discretion under the Driftnet Act by failing to identify Italy as a nation illegally conducting driftnet fishing. Pursuant to the Driftnet Act, the President was notified of Italy's violations, and consultations were conducted by which Italy agreed to terminate driftnet fishing. Thereafter, the Secretary of Commerce certified in 1997 that Italy had terminated driftnet fishing. Subsequently, the group alleged that illegal Italian driftnet fishing continued and, consequently, the President should be ordered to impose sanctions on Italy and that the Secretary of Commerce's certification should be rescinded. Although the CIT held that the Secretary's refusal to identify Italy as in violation of the Driftnet Act a second time was arbitrary and capricious, it refused to grant the group's requested relief, and the group appealed. The Driftnet Act's grant of jurisdiction to the CIT carries with it a coextensive waiver of sovereign immunity that subjects the President and executive officers to suit under the Act. Mandamus, however, is not warranted because the President's authority under the Driftnet Act to issue sanctions against a violating country if consultations with that country are not "satisfactorily concluded" is a matter that lies within the broad discretion of the President. Similarly, the Secretary of Commerce's certification was not arbitrary and capricious. Evidence supported the Secretary's determination that the agreement with Italy to stop driftnet fishing, although not fully implemented, was substantially so and would be completed before the 1997 fishing season. The fact that there may have been some individual violations by Italian vessels would not be determinative. Humane Society v. Clinton, No. 99-1360 (Fed. Cir. Jan. 4, 2001) (14 pp.).

The Sixth Circuit reversed a district court grant of a USSG downward departure to a pest-control applicator who was convicted of 20 counts of misdemeanor FIFRA violations for the illegal sale and use of the toxic pesticide methyl parathion. The applicator applied methyl parathion to the homes of his pest control customers in contravention of his FIFRA permit. After his conviction, the applicator moved pursuant to USSG §5K2.0 for a downward departure in the government's recommended sentencing range of 41 to 51 months. The district court reduced the applicator's sentence to 600 days because the court found that the applicator did not appreciate the severity of the harm that methyl parathion caused and because the misdemeanor nature of the crime did not warrant the severity of the sentence. However, when contemplating a departure from the USSG, a court should consider if aspects of the case are outside the heartland of cases supporting the USSG recommended sentence and whether the departures on these aspects are forbidden, encouraged, or discouraged. Here, the district court's reasons for departure are not forbidden by the USSG. Nevertheless, the USSG and the specific comments concerning FIFRA violations take into account multiple misdemeanor convictions. Likewise, lack of knowledge of serious harm caused by spraying methyl parathion is adequately contemplated by FIFRA and the USSG. Thus, the applicator's case is not sufficiently outside the heartland of cases, and the downward departure was improper. United States v. Kelly, No. 99-5327 (6th Cir. Dec. 28, 2000 ) (10 pp.).

A Florida appellate court held that expert testimony offered by an individual alleging permanent and total disability due to pesticide exposure was admissible under Frye v. United States, 93 F. 1013 (D.C. Cir. 1923). Despite the applicability of Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993), in other circuits, the court recognized the applicability of Frye in all civil and criminal litigation in Florida. However, it certified to the Florida Supreme Court the question of whether the standards of Frye need to be applied prior to admitting expert opinions concerning novel scientific principles or methodologies in a workers' compensation proceeding. The court went onto hold that although the employer failed to timely raise its Frye objections, the individual did not raise the issue of waiver and the court does not address whether the procedural defects have barred the employer's Frye objections. The individual's problems are neurological in nature. Applying the Frye factors, the court noted that it is generally accepted in the scientific literature that the various pesticides to which the individual was exposed are neurotoxic. The lack of epidemiological studies in the record relating to a causal link between chronic pesticide exposures and neurotoxic disease is not fatal to the individual's claims. Additionally, judicial decisions in many jurisdictions have recognized the neurological toxicity of chronic exposure of pesticides. Further, the individual's physicians relied on differential diagnosis in reaching their opinion. The individual's experts reviewed medical test results and the individual's history, examined the individual, and reviewed relevant medical literature that supported the general acceptance of the scientific principles on which they relied. United States Sugar Corp. v. Henson, No. 1D99-2798 (Fla. Dist. Ct. App. Dec. 29, 2000) (43 pp.).

The Ninth Circuit held that Washington state's IOLTA program, which requires lawyers and some non-lawyers to hold certain client short-term monies in interest bearing accounts that pay the interest to a state legal foundation for the indigent, constituted a taking of client property requiring just compensation under the Fifth Amendment. A public interest group and individuals sued the state foundation and the state supreme court seeking a declaratory judgment that the rules requiring real estate closing agents, who are not lawyers, to set up IOLTA accounts violated their clients' Fifth Amendment rights. Under Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998), interest earned on client funds held in IOLTA accounts is the private property of the client or the supervisory attorney for purposes of the Fifth Amendment. Further, a state statute cannot sidestep the Takings Clause by disavowing a traditional property interest, such as the common law rule that interest follows principal. Moreover, the state's appropriation of client interest for the state foundation is a taking that requires just compensation. Although the interest amounts at issue may be small or have no economically realizable value, they are valuable rights that inhere in the property. However, although the group and the individuals sought some redressable equitable relief, their prayer for relief sought reimbursement of the interest taken from them. Reimbursement is not a correct form of relief because it may be an incorrect measure of just compensation. Likewise, just compensation may be less than the interest gained because clients may not be entitled to the full amount of the interest due to reasonable expenses and fees. Therefore, the case was remanded to determine a proper remedy. Washington Legal Foundation v. Legal Foundation of Washington, No. 98-35154 (9th Cir. Jan. 10, 2001) (23 pp.).

A Maryland administrative law judge granted a county's motion for summary decision in a case in which a community association sought review of the county's receipt of a state nontidal wetlands permit for the planned construction of a roadway extension. The state environmental agency properly granted the wetlands permit to the county because the record evidence indicates that the county complied with the wetland permit application requirements in Environment Article §§5-501, 5-503, and 5-507 and COMAR §§26.17.04.04 and 26.17.04.07. The county adequately demonstrated that the highway construction project will meet the public need and project purpose by alleviating heavy traffic congestion and, as a result, increasing public safety. Further, extensive documentation and environmental studies indicates that the permit issuance was in full compliance with regulatory requirements for water quality, endangered species, smart growth, and wetlands mitigation. Moreover, the county will minimize impairments to nontidal wetlands and will provide mitigation in the form of creating 26,387 square feet of wetlands. In addition, the association presented no evidence that raised a genuine issue of material fact. Gingerville Community Ass'n v. Anne Arundel County, MDE-WMA-129-0200000004 (Md. Office of Admin. Hearings Jan. 10, 2001) (29 pp.) (Counsel for the county included William D. Evans, Jr. of the Anne Arundel County Office of Law).

EPA allocated essential use allowances for the production and/or import of class I ozone depleting substances for use in medical devices for the treatment of asthma and chronic obstructive pulmonary disease, and for use in space shuttle and titan rockets for calendar year 2001. 66 FR 1461 (1/8/01).

EPA announced the availability of new information on five-minute average sulfur dioxide (SO2) concentrations in the ambient air, and the status of EPA's ongoing activities to characterize and address five-minute peak SO2 levels that may pose risks to sensitive individuals with asthma. 66 FR 1665 (1/9/01).

EPA announced the availability of the Draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-1999 for public review and comment. 66 FR 1674 (1/9/01).

EPA determined that the Reno (Washoe County) Planning Area in Nevada has not attained the annual and 24-hour particulate matter NAAQS for moderate nonattainment areas. 66 FR 1268 (1/8/01).

EPA determined that it will not make changes to the interim final rule of August 7, 2000, that codified and implemented requirements for the Drinking Water State Revolving Fund program. 66 FR 2823 (1/12/01).

EPA approved the use of updated versions of test procedures for the determination of chemical, radiological, and microbiological pollutants and contaminants in wastewater and drinking water. 66 FR 3466 (1/16/01).

EPA made minor revisions to the Interim Enhanced Surface Water Treatment Rule and the Stage 1 Disinfectants and Disinfection Byproducts Rule, which were published December 16, 1998, and the Revisions to State Primacy Requirements to Implement Safe Drinking Water Act Amendments, which were published April 28, 1998. 66 FR 3769 (1/16/01).

EPA announced that it intends to approve revisions to Alabama's public water system supervision program. 66 FR 3580 (1/16/01).

ENERGY CONSERVATION:

DOE adopted, with changes, an interim final rule published on May 19, 1999, to implement the Energy Conservation Reauthorization Act of 1998, which allows fleets that are required to purchase alternative fueled vehicles to meet those requirements, in part, through the use of biodiesel fuel use credits. 66 FR 2207 (1/11/01).

HAZARDOUS AND SOLID WASTE:

EPA proposed to enter into an administrative settlement under CERCLA §122(h) in connection with the Woody Wilson Battery Superfund site in Ashley Heights, N.C. 66 FR 1986 (1/10/01).

EPA entered into a proposed prospective purchaser agreement under CERCLA concerning property that has been potentially contaminated by releases from the Ward Transformer Superfund site in Raleigh, N.C. 66 FR 4026 (1/17/01).

The U.S. Forest Service revised its regulations concerning the management, use, and maintenance of the National Forest Transportation System to help ensure that additions to the National Forest System network of roads are those deemed essential for resource management and use; that construction, reconstruction, and maintenance of roads minimize adverse environmental impacts; and, finally, that unneeded roads are decommissioned and restoration of ecological processes are initiated. 66 FR 3205 (1/12/01).

The U.S. Forest Service adopted a final rule to establish prohibitions on road construction, road reconstruction, and timber harvesting in inventoried roadless areas on National Forest System lands. 66 FR 3243 (1/12/01).

The U.S. Forest Service adopted a final policy governing that National Forest Transportation System. 66 FR 3219 (1/12/01).

USDA adopted an interpretive rule to make explicit its intent regarding the procedures that citizens and entities may use to appeal or object to National Forest System land and resource management plan revisions or amendments subsequent to the recent revisions of the planning regulations at 36 CFR part 219 and the corollary rescission of the appeal regulations at 36 CFR part 217. 66 FR 1864 (1/10/01).

OSHA issued revised employer recordkeeping standards that will become effective Jan. 1, 2002. Among other things, the new standards eliminate different criteria for recording work-related injuries and work-related illnesses; require records to include any work-related injury or illness resulting in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or diagnosis of a significant injury/illness by a physician or other licensed health care professional; and requires a significant degree of aggravation before a preexisting injury or illness becomes recordable. See http://www.osha-slc.gov/recordkeeping/index.html

EPA and the U.S. Army Corps of Engineers amended the CWA §404 regulations defining the term "discharge of dredged material" to establish a rebuttable presumption that mechanized landclearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in waters of the U.S. result in more than incidental fallback, and thus involve a regulable discharge of dredged material. 66 FR 4549 (1/17/01).

EPA proposed to revise and update two regulations that address the manure, wastewater, and other process waters generated by concentrated animal feeding operations on water quality. 66 FR 2959 (1/12/01).

EPA announced the availability of its recommended water quality criterion for methylmercury. 66 FR 1344 (1/8/01).

EPA announced the availability of 17 ecoregional nutrient criteria documents for lakes, reservoirs, rivers, streams, and wetlands within specific geographic regions of the United States. 66 FR 1671 (1/9/01).

EPA announced the availability of the Estuarine and Coastal Marine Waters: Bioassessment and Biocriteria Technical Guidance document developed and published pursuant to CWA §304(a)(8). 66 FR 1674 (1/9/01).

EPA approved the analytical methods for 13 chemical contaminants on the list of contaminants for which monitoring methods are being refined (List 2) under the unregulated contaminant monitoring regulations for public water systems. 66 FR 2273 (1/11/01).

WILDLIFE:

The National Marine Fisheries Service amended the regulations that require most shrimp trawlers to use turtle excluder devices in waters of the Atlantic and Gulf Areas of the United States to reduce the incidental capture of endangered and threatened sea turtles during shrimp trawling. 66 FR 1601 (1/9/01).

FWS proposed to establish, in a policy, a procedure for determining when uses other than the six priority wildlife-dependant recreational uses are appropriate or not appropriate on a unit of the National Wildlife Refuge System. 66 FR 3673 (1/16/01).

FWS issued the final Policy on Maintaining the Biological Integrity, Diversity, and Environmental Health of the National Wildlife Refuge System. 66 FR 3809 (1/16/01).

FWS proposed to adopt a policy articulating the mission of the National Wildlife Refuge System, establishing its goals, and providing guidance for identifying or determining the purpose(s) of individual refuge units within the System. 66 FR 3667 (1/16/01).

FWS proposed to modify its policy for implementing the Wilderness Act of 1964 and the National Wildlife Refuge System Administration Act of 1966 as amended. 66 FR 3708 (16/01).

FWS proposed to adopt a policy that will explain how the agency will provide visitors with high quality hunting, fishing, wildlife observation and photography, and environmental education and interpretation opportunities on units of the National Wildlife Refuge System. 66 FR 3681 (1/16/01).

The President issued Executive Order 13186, Responsibility of Federal Agencies to Protect Migratory Birds, which directs executive departments and agencies to take certain actions to further implement the Migratory Bird Treaty Act. 66 FR 3853 (1/17/01).

U.S. v. City of Mandeville, La., No. 00-366 (E.D. La. Dec. 12, 2000) (a settling CWA defendant that operates a public sewage treatment plant must pay a $56,500 civil penalty, must perform injunctive relief to come into compliance with the CWA, and must comply with interim limits for the discharge of ammonia-nitrogen, biochemical oxygen demand, and total suspended solids from its plant), 66 FR 2445 (1/11/01);

H.R. 104 (Hayworth, R-Ariz.) (Native American lands) would repeal the Bennet Freeze thus ending a gross treaty violation with the Navajo Nation and allowing the Navajo Nation to live in habitable dwellings and raise their living conditions. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 105 (Hayworth, R-Ariz) (regulatory reform) would require Congress and the President to fulfill their constitutional duty to take personal responsibility for federal laws. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on the Judiciary, and Rules.

H.R. 108 (Hefley, R-Co.) (fishing) would establish a moratorium on bottom trawling and use of other mobile fishing gear on the seabed in certain areas off the coast of the United States. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 109 (Hefley, R-Co.) (CWA) would amend the CWA to provide for the use of biological monitoring and whole effluent toxicity tests in connection with POTWs, municipal separate storm sewer systems, and municipal combined sewer overflows. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Transportation and Infrastructure.

H.R. 110 (Hefley, R-Col.) (taxes; conservation) would amend the Internal Revenue Code of 1986 to provide a credit against income tax for certain charitable conservation contributions of land by small farmers and ranchers. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Ways and Means.

H.R. 111 (Holt, D-N.J.) (FIFRA) would amend FIFRA to require local educational agencies and schools to implement integrated pest management systems to minimize the use of pesticides in schools and to provide parents, guardians, and employees with notice of the use of pesticides in schools. 147 CONG. REC. H59 (Jan. 6, 2001). The bill was referred to the Committee on Agriculture.

H.R. 115 (Holt, D-N.J.) (biotechnology; agriculture) would provide for a program to educate the public regarding the use of biotechnology in producing food for human consumption, and to support additional scientific research regarding the potential economic and environmental risks and benefits of using biotechnology to produce food. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on Agriculture, and Energy and Commerce.

H.R. 131 (Miller, R-Cal.) (water resources) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Inland Empire regional water recycling project, to authorize the Secretary to carry out a program to assist agencies in projects to construct regional brine lines in California, and to authorize the Secretary to participate in the Lower Chino Dairy Area desalination demonstration and reclamation project. 146 CONG. REC. H60 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 144 (Oberstar, D-Minn.) (pipeline safety) would amend title 49, United States Code, to require periodic inspections of pipelines and improve the safety of our nation's pipeline system. 147 CONG. REC. H60 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on Transportation and Infrastructure, and Energy and Commerce.

H.R. 146 (Pascrell, D-N.J.) (Great Falls Historic District) would authorize the Secretary of the Interior to study the suitability and feasibility of designating the Great Falls Historic District in Paterson, New Jersey, as a unit of the National Park System. 147 CONG. REC. H60 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 158 (Regula, R-Ohio) (Mount McKinley) would provide for the retention of the name of Mount McKinley. 147 CONG. REC. H61 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 172 (Serrano, D-N.Y.) (food safety) would amend the Food, Drug, and Cosmetic Act and the egg, meat, and poultry inspection laws to ensure that consumers receive notification regarding food products produced from crops, livestock, or poultry raised on land on which sewage sludge was applied. 146 CONG. REC. H61 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on Energy and Commerce, and Agriculture,

H.R. 176 (Shadegg, R-Ariz.) (land exchange) would provide for the implementation of the agreement between the Secretary of the Interior and the Governor of Arizona to facilitate a land exchange of federal and state lands between the United States and the state of Arizona pending a state referendum regarding the agreement in 2002. 147 CONG. REC. H61 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 182 (Simmons, R-Ct.) (rivers) would amend the Wild and Scenic Rivers Act to designate a segment of the Eight Mile River in Connecticut for study for potential addition to the National Wild and Scenic Rivers System. 147 CONG. REC. H61 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 183 (Slaughter, D-N.Y.) (environmental health) would amend the Public Health Service Act to provide for awards by the National Institute of Environmental Health Sciences to develop and operate multidisciplinary research centers regarding the impact of environmental factors on women's health and disease prevention. 147 CONG. REC. H62 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Energy and Commerce.

H.R. 187 (Slaughter, D-N.Y.) (environmental regulation of small communities) would enhance the services provided by EPA to small communities that are attempting to comply with national, state, and local environmental regulations. 147 CONG. REC. H62 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.

H.R. 212 (Sweeney, R-N.Y.) (takings) would ensure that federal agencies establish the appropriate procedures for assessing whether or not federal regulations might result in the taking of private property, and to direct the Secretary of Agriculture to report to the Congress with respect to such takings under programs of the USDA. 147 CONG. REC. H62 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on the Judiciary, and Agriculture.

H.R. 223 (Udall, D-Colo.) (land transfer) would amend the Clear Creek County, Colorado, Public Lands Transfer Act of 1993 to provide additional time for Clear Creek County to dispose of certain lands transferred to the county under the Act. 147 CONG. REC. H62 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

Jan. 23, 2001, workshop will discuss proposed amendments to address the transfer of air permits and to introduce a new Transfer of Air Permit Form, incorporate general conditions for all non-Title V air general permits, and add a new general permit for nonmetallic mineral processing plants.

South Florida Water Management District

Proposed Regulations-Everglades Phosphorus Load

Proposed regulations will implement the Everglades Forever Act by mandating a 25% reduction in the total phosphorus load discharged from the Everglades Agricultural Area. See http://www.sfwmd.gov.rules

Amends 326 IAC 15-1-2 concerning source-specific provisions for the control of lead emissions. Amends 326 IAC 15-1-3 concerning control of fugitive lead dust. Adds 326 IAC 20-13 concerning national emissions standards for hazardous air pollutants for secondary lead smelters.

Amends 327 IAC 8-2 concerning amendments to 327 IAC 8-2 concerning lead and copper. On January 12, 2000, U.S. EPA published national primary drinking water regulations for lead and copper. These regulations make changes to the lead and copper rule as published June 7, 1991. These minor revisions are being made to improve implementation of the rule. The intended effect of the rule is to eliminate unnecessary requirements, streamline and reduce reporting burden, and promote consistent national implementation of the federal rule. Indiana is required to adopt these revisions in order to maintain primacy (primary enforcement authority) for the lead and copper rule.

Proposed Regulations-Solid Waste

329 IAC 7, regarding the Indiana Scoring Model and the assessment of hazardous substance response sites. This rule will reconsider the maximum score to allow sites to be deleted from the Commissioner's Bulletin. This rule will also consider appropriate criteria or designation for the deletion of sites from the Commissioner's Bulletin as an alternative to using the maximum score for deleting a site.

Proposed amendments to petroleum liquid storage, loading and transfer standards for the Kansas City Metropolitan Area (10 CSR 10-2.260), to ensure consistency with 10 CSR 10-5.220. Public hearing Feb. 6; written comments due Feb. 13. See http://mosl.sos.state.mo.us/moreg/2001/v26n1/v26n1b.pdf

The Worldwatch Institute, in its "State of the World 2001," decried a loss of political momentum to deal with pressing global environmental problems. It cited the failed November climate change talks as an example of "the current climate of political and economic uncertainty," and warned that there is a threat that "decades of progress could unravel." Few positive developments were noted. See http://www.worldwatch.org

The United Nations altered its personnel, those positioned in the Balkans, to avoid contact with fragments of munitions that may have contained depleted uranium. However, U.N. Assistant Secretary-General for Human Resources Rafiah Salim said there is "very little scientific evidence to suggest that there is a risk" of contracting leukemia. NATO, UNEP, and the World Health Organization are among the groups investigating claims of health risks. See http://www.un.org/News/dh/latest/page2.html#14 NATO issued a report contending that there is no evidence of a relationship between depleted uranium and so-called "Balkan syndrome" illnesses or complaints, including leukemia.

Outgoing U.S. Trade Representative Charlene Barshefsky announced a planned interagency review of the potential environmental ramifications of World Trade Organization talks to reduce trade barriers in services and agricultural products, pursuant to Executive Order 13141 (1999). An environmental review of the recent U.S.-Jordan Free Trade Agreement is ongoing, as are reviews of pending agreements for inter-American trade and for trade with Chile and Singapore. Chile has indicated its opposition to the inclusion of provisions specifically relating to labor or environmental protections.

The journal Electricity Daily, citing Japanese officials, reported that "secret" climate change discussions might occur next month in New Zealand, involving Japan, U.S., and several other non-European industrialized countries. Japan will seek an international agreement to reduce greenhouse gas emissions from civil air transport and oceangoing vessels.

The U.N. Intergovernmental Panel on Climate Change working group began a meeting in Shanghai that will be marked by the release of an extensive new report on climate change. See http://www.ipcc.ch/press/pr16-01.htm

The Association of Small Island States urged the U.S. and Europe to act quickly on climate change developments. AOSIS President Tuiloma Neroni Slade of Samoa said that "(r)isingsea levels have already affected many of our members, leading to loss of preciousland and affecting the local economies." The island states have "very little responsibility for the emission of greenhouse gases, which lead to global climate change, yet we are the first to feel the impact of a condition caused primarily by the unsustainable use of energy and the emissions by developed nations."

A study published in Nature suggests that droughts caused by global warming could accelerate climate change by promoting a biochemical process in northern soils that cause significant amounts of carbon dioxide to be released into the atmosphere.

German Chancellor Gerhard Schroeder, responding to the "mad cow" crisis, handed over responsibility for food safety and agriculture to the Green Party, his coalition partner. Renate Kuenast of the Greens was named agriculture minister.

Japan was pleased, but numerous other nations and environmental groups deeply disappointed, with Norway's decision to end a self-imposed ban on the export of whale meat and blubber. Norwegian Foreign Minister Thorbjoern Jagland argued that the hunted species were sufficient in number in justify meat export, and denied the claim that the decision was made on economic grounds. See http://news.bbc.co.uk/hi/english/world/europe/newsid_1121000/1121654.stm Norway recommenced whale hunts in 1993.

A new European Union environmental directive, Directive 2000/76/EC, strengthens standards applicable to municipal waste incineration. New plants will be affected by the new standards as of Dec. 28, 2002; existing ones by Dec. 28, 2005. Another new directive, 2000/59/EC, concerns ocean discharges of ship-generated waste.

The U.K. "Proposed Amendments to the Pollution Prevention and Control (England and Wales) Regulations 2000, SI 1973 Consultation Paper" would, if adopted, strengthen air, water, and waste management standards applicable to several industries, including tire manufacturing and wood processing plants. Comments are due by Jan. 31. See http://www.environment.detr.gov.uk/consult/ppc2000/si1973/01.htm

The European Union agreed to voluntary guidelines to encourage governments to monitor and ensure their industries meet environmental standards, but odds are not good that the standards will be made mandatory. See http://www.planetark.org/dailynewsstory.cfm?newsid=9488 Caroline Jackson, chair of the European Parliament's Environment Committee, argued that more expeditious enforcement against noncomplying EU states is necessary, pointing out that a case against Greece for violations of landfill standards took 19 years to be resolved. She said that "environmental laws are ignored, targets are not met, reports are not timely submitted, and countries which break the law go unpunished." According to Environment Commissioner Margot Wallstrom, almost half of all allegations of violation received by the European Commission relate to environmental standards.

European Trade Commissioner Pascal Lamy said it is likely that all agricultural subsidies, save for those necessary for food safety or environmental reasons, will be phased out during this decade.

France's Transport Minister said that the owners of the sunken cargo vessel "Ievoli Sun" will be responsible for pumping out and managing the 6,000 tons of toxic chemicals onboard.

Hungary and Romania have requested U.S. $10 million in aid from the European Union to address measures to prevent further cyanide releases into shared waterways.

Officials in the Brazilian state of Amapa acknowledged that arsenic runoff from a now-closed mining operation has seriously contaminated three Amazon river tributaries. Although at least 100 cases of poisoning have been reported, no deaths have been attributed to the pollution to date.

Over 700 people died as a result of a strong earthquake in El Salvador. Some claimed that the earthquake's effects were magnified because of significant deforestation in the affected areas.

Columbia's army accused both left- and right-wing guerillas and paramilitary groups of callous disregard of the environment.

A court in Argentina blocked a British ship carrying nuclear waste from France to Japan from entering the country's waters. Meanwhile, Britain is considering whether to reopen the controversial and scandal-ridden Sellafield plant.

ASIA

Taiwan's supreme court ruled that President Chen Shui-bian acted illegally in halting construction of a controversial nuclear power plant. The plant has become a symbol of political differences between Chen's party and the Nationalists, who support the plant and continue to control the legislature.

The U.S. and Japan, as a result of a visit to Tokyo by U.S. Commerce Secretary Norman Mineta, agreed to ask the International Whaling Commission to examine lethal and nonlethal methods of studying whales and to convene a workshop on research whaling. The U.S., of course, has previously argued that Japan is not engaged in "research" whaling at all, arguing that what has actually occurred is prohibited hunting. Whale meat is an expensive and sought-after delicacy in Japan. Japanese Agriculture Minister Yoshio Yatsu said that "(t)he issue must be resolved based on international laws as well as objective standards. . . . It should not be dealt with emotionally."

China, thanks to a World Bank grant, began the manufacture of hydrofluorocarbon-134a as a replacement for chlorofluorocarbon-12.

Stricter environmental laws could be on the books in China by next summer, although implementation and enforcement are another matter. The National People's Congress took the first step toward the enactment of more stringent controls.

Fishermen in Hong Kong protested against dredging for a Disney theme park and a new container terminal, arguing that "the fish don't come anymore because of the dredging work." Fish stocks off of Hong Kong have fallen dramatically, by at least 80%, in the last year. The government has already paid limited compensation to affected fishermen.

The U.S. Supreme Court held that the U.S. Army Corps of Engineers exceeded its CWA §404(a) authority to regulate the discharge of dredged or fill material into U.S. navigable waters when, under the Migratory Bird Rule, it extended the definition of "waters of the United States" to include nonnavigable, intrastate, isolated waters used as migratory bird habitat. Therefore, the Court reversed a circuit court decision upholding the Corps' refusal to grant several Illinois municipalities a §404(a) permit for the development of a solid waste disposal site on an abandoned sand and gravel pit that contained isolated, seasonal ponds used by migratory birds. The CWA's text does not support the Migratory Bird Rule. Although in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985), the Court stated that Congress intended the CWA to regulate some nonnavigable waters, that holding was based in large measure on Congress' acquiescence to the Corps' regulations interpreting the CWA to cover wetlands adjacent to navigable waters. Thus, the Court in Riverside Bayview Homes found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands inseparably bound up with the waters of the United States. To find for the Corps here, the Court would have to hold that the Corps' jurisdiction extends to ponds that are not adjacent to open water, but the CWA's text will not allow this. Moreover, the Corps' original interpretation of the CWA in 1974 defined "navigable waters" to mean those waters subject to the tide that can be used for transportation or commerce. Further, Congress' failure to pass a 1977 bill that would have overturned the Corps' extension of §404(a) jurisdiction to nontraditional navigable waters did not demonstrate Congress' acquiescence to the Corps' regulations or the Migratory Bird Rule, which was not promulgated until 1986. Similarly, CWA §404(g)(1)'s reference to waters other than navigable waters gives no intimation what those "other waters" might be and, thus, does not require acceptance of the Corps' regulations. In addition, if §404(a) was not clear, deference cannot be extended to the Corps's interpretation of §404(a) under the Migratory Bird Rule. According to the Corps, the Migratory Bird Rule falls within Congress' power under the Commerce Clause. However, there are significant constitutional questions regarding the rule and no clear statement from Congress that §404(a) should reach sand and gravel pits. Permitting the Corps to claim federal jurisdiction over waters falling under the Migratory Bird Rule would result in a significant impingement of the states' traditional and primary power over land and water use. Because the CWA must be read to avoid the significant constitutional and federalism questions raised by the Corps' interpretation, deference is rejected. Justice Stevens, with Justices Souter, Ginsburg, and Breyer, dissented arguing that the Court previously held in Riverside Bayview Homes that the Corps' CWA jurisdiction extends to nonnavigable waters that are not directly adjacent to or hydrologically connected to navigable water. Further, Justice Stevens argued that the Corps' §404(a) interpretation is entitled to deference and that the Migratory Bird Rule is constitutionally valid under the Commerce Clause. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) (38 pp.).

The U.S. Supreme Court held, in a per curiam opinion, that the criminal conviction of a hazardous waste facility operator under a Pennsylvania hazardous waste statute for operating a hazardous waste facility without a permit violated the federal Due Process Clause. When the operator was convicted, he in fact had a permit, but the state argued that he deviated so dramatically from the permit's terms that he violated the statute. Subsequent to his conviction, the state supreme court reversed the conviction of the operator's partner on the grounds that deviation from a permit's terms did not constitute operating without a permit. After the operator unsuccessfully sought to have state courts set aside his conviction, he brought a federal habeas corpus action. The district court granted the operator's writ, but the court of appeals held that in the partner's case, the state supreme court has announced a new rule of law, inapplicable to the operator's final conviction. Therefore, the state court had no obligation to apply its decision retroactively to the operator. However, the Supreme Court certified to the state supreme court the question as to whether its decision in the partner's case represented a new rule of law or a clarification of the statute. The state supreme court stated that its decision in the partner's case merely clarified the statute. Therefore, because the decision in the partner's case was not new law, the operator's case presents no issue of retroactivity. The question then becomes whether, consistent with the federal Due Process Clause, the operator can be convicted for conduct that the statute as properly interpreted does not prohibit. The simple conclusion is that the operator's conviction violates the Due Process Clause, and, consequently, the court of appeals is reversed and the case remanded. Fiore v. White, No. 98-942 (U.S. Jan. 9, 2001) (4 pp.).

The Third Circuit held that the repeal and replacement of a 1996 statutory amendment governing the placement of landfills near commercial airports moots and requires vacatur of a potential landfill operator's facial attacks on the constitutionality of the amendment, but does not moot the operator's as-applied constitutional claims. The operator applied for and received permits to construct a landfill adjacent to an airport. In 1996, six years after pre-construction began, the state environmental agency determined that the landfill site contained wetlands of an exceptional value and revoked the operator's permits. The operator appealed the decision and that action is still pending in Pennsylvania state court. Also in 1996, Congress passed the Federal Aviation Reauthorization Act with an amendment placing strict limitations on the construction of landfills near commercial airports. A district court found the amendment facially unconstitutional. In 2000, Congress enacted legislation substantially modifying the 1996 amendment and significantly broadening its scope, thereby resolving many of the district court's concerns. The passage of the 2000 amendment mooted the operator's facial constitutional challenges to the 1996 amendment. The scope of the 2000 amendment is substantially broader than that of the challenged law and a declaration of unconstitutionality or injunction directed against the objectionable features of the 1996 amendment would serve no purpose today. Further, the operator's challenges do not fall within any recognized exception to the mootness doctrine. Accordingly, the district court's judgment as to the facial unconstitutionality of the 1996 amendment is vacated. There is no evidence to suggest that the 2000 amendment represents manipulation of the legislative process rather than responsible lawmaking. Additionally, the operator's as-applied constitutional claims are not mooted by the 2000 amendment, but the court does not find any violations of the operator's procedural or substantive due process rights. Khodara Environmental, Inc. v. Beckman, Nos. 99-3458 et al. (3d Cir. Jan. 17, 2001) (17 pp.).

The Tenth Circuit reversed a district court holding that collateral estoppel barred an environmental group's CWA citizen suit against EPA for failure to recognize an illegal point source. In 1995, the group alleged that a corporation's discharge of pollutants leached from waste rock piles into a river was not authorized by its NPDES permit, but the district court lacked subject matter jurisdiction over that claim. In the present case, the group claims that a 1998 EPA report's recognition of the corporation's waste rock piles as an illegal point source triggered an EPA duty under CWA §309(a)(3) to take action against the corporation. Collateral estoppel does not bar the group's second claim because the issue previously decided in the prior action is not identical to the action in the present case. The issue in the prior case concerned the group's allegations of a point source discharge that should have been taken into consideration in EPA's decision to reissue the corporation's NPDES permit. Here, the issue is whether EPA has a duty to take action once it discovers an illegal point source discharge. Further, the group did not have a full and fair opportunity to litigate the current issue in the prior action because the 1998 EPA report was issued over two years after initiation of the earlier action. Amigos Bravos v. Environmental Protection Agency, No. 99-2346 (10th Cir. Jan. 3, 2001) (4 pp.).

The D.C. Circuit dismissed as moot utilities' petitions to review four FERC orders approving three pipeline capacity sale contracts between two natural gas companies. In 1995, a customer of one gas company terminated its contract, leaving a large amount of unsubscribed capacity. To address the excess capacity, the company negotiated a settlement in 1996 with its direct customers that reduced the company's reservation charges, delayed general rate increases, and divided the capacity into three blocks. In 1997, the company then sold the three excess blocks to a second gas company through three separate two-year contracts. Each contract included a revenue reduction mechanism (RRM) that reduced the second company's minimum pay obligation if the first company sold capacity in competition with the second company's resale of the block capacity. The first company then filed for and received FERC approval of the contracts' terms. Several utilities protested claiming that the contracts, particularly the RRM, were anti-competitive and inconsistent with the 1996 settlement. Nevertheless, three subsequent separate FERC orders authorized the contracts. After the two-year contracts expired in 1999, the first company entered into a second series of FERC-approved contracts with another customer. The utilities appealed to federal court contesting the four FERC orders approving the first set of contracts. However, the utilities' appeal is moot because the contracts at issue expired in 1999. Moreover, the utilities' petition does not fall into the mootness exception for cases that are capable of repetition yet evading review. Although FERC's review of the two-year contracts at issue did not provide enough time to allow their validity to be fully litigated, the utilities did not satisfy the exception's capable of repetition element. The utilities alleged that FERC's approval of the second series of contracts demonstrates that they will be subjected to the same the anti-competitive activity. FERC, however, stated that its approval of the RRMs was case specific and that the approval of RRMs is not a continuing FERC policy. Further, FERC's method of balancing anti-competitive harm changes over time. The utilities, therefore, failed to establish a reasonable expectation that FERC's balancing method will cause future anti-competitive harm. Public Utilities Commission of the State of California v. Federal Energy Regulatory Commission, No. 99-1390 (D.C. Cir. Jan. 12, 2001) (10 pp.).

The D.C. Circuit affirmed a district court holding that an oil producers association contesting the DOI's take-or-pay oil royalties policy failed to challenge a final agency action and, therefore, the court lacked subject matter jurisdiction over the association's complaint. The association sought to prevent the DOI from collecting royalties on unrecoupable take-or-pay settlements. Thereafter, an oil company challenged the DOI's attempt to collect royalties on settlement payments made to the company. Eventually, the association's and the company's challenges were consolidated. The D.C. Circuit previously held that a DOI letter requiring royalties for take-and-pay settlements did not constitute a DOI rule, but in light of this letter and precedent, the DOI acted arbitrarily and capriciously when it sought royalties from the company. On remand, the district court implemented the circuit court's mandate to the company, but the district court held that the circuit court decision only addressed the association's claim regarding the DOI's letter, not the association's wide-ranging complaint challenging the DOI's royalty policy. The district court then properly dismissed the association's claim because the association did not face any final actions that it may challenge. The association's complaint states that it challenges the DOI's efforts to collect royalties on take-or-pay settlement payments. It is not clear what efforts are challenged, but it is clear that these efforts are not final agency actions fit for judicial review. The efforts that the association seeks to challenge do not refer to any particular DOI action, order, or regulation. Instead, the association seeks an improper generic challenge. In addition, the association never sought to join or intervene in the company's case, and there is no evidence that the company and the association impliedly consented to jointly litigate the company's challenge. Independent Petroleum Ass'n of America v. Babbitt, No. 98-5131 (D.C. Cir. Jan. 5, 2001) (9 pp.).

On remand from the U.S. Supreme Court, the Federal Circuit affirmed a Court of Federal Claims decision awarding two oil companies restitution of the full amount of bonus payments they paid to the U.S. government for 10-year renewable rights to explore for and develop oil and gas resources on tracts of the outer continental shelf offshore of North Carolina. After the companies paid for the leases, the U.S. Congress passed the OBPA, which required the DOI to delay lease implementation. The companies sued for restitution, and the Court of Federal Claims awarded full restitution. After reversal by the Federal Circuit, the U.S. Supreme Court reversed the Federal Circuit and held that the U.S. government repudiated its agreements with the companies and, thus, must give back the bonus payments. The government now argues that any restitution should be offset by the asserted reduction in the market value of the leases due to the reduced price of oil and gas at the time of the government's breach. However, reduction in market value is irrelevant to the non-breaching party's right to restitution of the full amount paid. Further, the purported loss in value of the leases is not a benefit imparted before contract repudiation that must be credited against restitution. Marathon Oil Co. v. United States, No. 97-5146 (Fed. Cir. Dec. 28, 2000) (4 pp.).

The Federal Circuit affirmed a Court of International Trade (CIT) decision denying an animal rights group's requests to issue a writ of mandamus directing the President to impose sanctions on Italy for Driftnet Act violations and to order the Secretary of Commerce to rescind his certification that Italy terminated large-scale driftnet fishing. In 1995, the CIT held that the Secretary of Commerce abused his discretion under the Driftnet Act by failing to identify Italy as a nation illegally conducting driftnet fishing. Pursuant to the Driftnet Act, the President was notified of Italy's violations, and consultations were conducted by which Italy agreed to terminate driftnet fishing. Thereafter, the Secretary of Commerce certified in 1997 that Italy had terminated driftnet fishing. Subsequently, the group alleged that illegal Italian driftnet fishing continued and, consequently, the President should be ordered to impose sanctions on Italy and that the Secretary of Commerce's certification should be rescinded. Although the CIT held that the Secretary's refusal to identify Italy as in violation of the Driftnet Act a second time was arbitrary and capricious, it refused to grant the group's requested relief, and the group appealed. The Driftnet Act's grant of jurisdiction to the CIT carries with it a coextensive waiver of sovereign immunity that subjects the President and executive officers to suit under the Act. Mandamus, however, is not warranted because the President's authority under the Driftnet Act to issue sanctions against a violating country if consultations with that country are not "satisfactorily concluded" is a matter that lies within the broad discretion of the President. Similarly, the Secretary of Commerce's certification was not arbitrary and capricious. Evidence supported the Secretary's determination that the agreement with Italy to stop driftnet fishing, although not fully implemented, was substantially so and would be completed before the 1997 fishing season. The fact that there may have been some individual violations by Italian vessels would not be determinative. Humane Society v. Clinton, No. 99-1360 (Fed. Cir. Jan. 4, 2001) (14 pp.).

The Sixth Circuit reversed a district court grant of a USSG downward departure to a pest-control applicator who was convicted of 20 counts of misdemeanor FIFRA violations for the illegal sale and use of the toxic pesticide methyl parathion. The applicator applied methyl parathion to the homes of his pest control customers in contravention of his FIFRA permit. After his conviction, the applicator moved pursuant to USSG §5K2.0 for a downward departure in the government's recommended sentencing range of 41 to 51 months. The district court reduced the applicator's sentence to 600 days because the court found that the applicator did not appreciate the severity of the harm that methyl parathion caused and because the misdemeanor nature of the crime did not warrant the severity of the sentence. However, when contemplating a departure from the USSG, a court should consider if aspects of the case are outside the heartland of cases supporting the USSG recommended sentence and whether the departures on these aspects are forbidden, encouraged, or discouraged. Here, the district court's reasons for departure are not forbidden by the USSG. Nevertheless, the USSG and the specific comments concerning FIFRA violations take into account multiple misdemeanor convictions. Likewise, lack of knowledge of serious harm caused by spraying methyl parathion is adequately contemplated by FIFRA and the USSG. Thus, the applicator's case is not sufficiently outside the heartland of cases, and the downward departure was improper. United States v. Kelly, No. 99-5327 (6th Cir. Dec. 28, 2000 ) (10 pp.).

A Florida appellate court held that expert testimony offered by an individual alleging permanent and total disability due to pesticide exposure was admissible under Frye v. United States, 93 F. 1013 (D.C. Cir. 1923). Despite the applicability of Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993), in other circuits, the court recognized the applicability of Frye in all civil and criminal litigation in Florida. However, it certified to the Florida Supreme Court the question of whether the standards of Frye need to be applied prior to admitting expert opinions concerning novel scientific principles or methodologies in a workers' compensation proceeding. The court went onto hold that although the employer failed to timely raise its Frye objections, the individual did not raise the issue of waiver and the court does not address whether the procedural defects have barred the employer's Frye objections. The individual's problems are neurological in nature. Applying the Frye factors, the court noted that it is generally accepted in the scientific literature that the various pesticides to which the individual was exposed are neurotoxic. The lack of epidemiological studies in the record relating to a causal link between chronic pesticide exposures and neurotoxic disease is not fatal to the individual's claims. Additionally, judicial decisions in many jurisdictions have recognized the neurological toxicity of chronic exposure of pesticides. Further, the individual's physicians relied on differential diagnosis in reaching their opinion. The individual's experts reviewed medical test results and the individual's history, examined the individual, and reviewed relevant medical literature that supported the general acceptance of the scientific principles on which they relied. United States Sugar Corp. v. Henson, No. 1D99-2798 (Fla. Dist. Ct. App. Dec. 29, 2000) (43 pp.).

The Ninth Circuit held that Washington state's IOLTA program, which requires lawyers and some non-lawyers to hold certain client short-term monies in interest bearing accounts that pay the interest to a state legal foundation for the indigent, constituted a taking of client property requiring just compensation under the Fifth Amendment. A public interest group and individuals sued the state foundation and the state supreme court seeking a declaratory judgment that the rules requiring real estate closing agents, who are not lawyers, to set up IOLTA accounts violated their clients' Fifth Amendment rights. Under Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998), interest earned on client funds held in IOLTA accounts is the private property of the client or the supervisory attorney for purposes of the Fifth Amendment. Further, a state statute cannot sidestep the Takings Clause by disavowing a traditional property interest, such as the common law rule that interest follows principal. Moreover, the state's appropriation of client interest for the state foundation is a taking that requires just compensation. Although the interest amounts at issue may be small or have no economically realizable value, they are valuable rights that inhere in the property. However, although the group and the individuals sought some redressable equitable relief, their prayer for relief sought reimbursement of the interest taken from them. Reimbursement is not a correct form of relief because it may be an incorrect measure of just compensation. Likewise, just compensation may be less than the interest gained because clients may not be entitled to the full amount of the interest due to reasonable expenses and fees. Therefore, the case was remanded to determine a proper remedy. Washington Legal Foundation v. Legal Foundation of Washington, No. 98-35154 (9th Cir. Jan. 10, 2001) (23 pp.).

A Maryland administrative law judge granted a county's motion for summary decision in a case in which a community association sought review of the county's receipt of a state nontidal wetlands permit for the planned construction of a roadway extension. The state environmental agency properly granted the wetlands permit to the county because the record evidence indicates that the county complied with the wetland permit application requirements in Environment Article §§5-501, 5-503, and 5-507 and COMAR §§26.17.04.04 and 26.17.04.07. The county adequately demonstrated that the highway construction project will meet the public need and project purpose by alleviating heavy traffic congestion and, as a result, increasing public safety. Further, extensive documentation and environmental studies indicates that the permit issuance was in full compliance with regulatory requirements for water quality, endangered species, smart growth, and wetlands mitigation. Moreover, the county will minimize impairments to nontidal wetlands and will provide mitigation in the form of creating 26,387 square feet of wetlands. In addition, the association presented no evidence that raised a genuine issue of material fact. Gingerville Community Ass'n v. Anne Arundel County, MDE-WMA-129-0200000004 (Md. Office of Admin. Hearings Jan. 10, 2001) (29 pp.) (Counsel for the county included William D. Evans, Jr. of the Anne Arundel County Office of Law).

EPA allocated essential use allowances for the production and/or import of class I ozone depleting substances for use in medical devices for the treatment of asthma and chronic obstructive pulmonary disease, and for use in space shuttle and titan rockets for calendar year 2001. 66 FR 1461 (1/8/01).

EPA announced the availability of new information on five-minute average sulfur dioxide (SO2) concentrations in the ambient air, and the status of EPA's ongoing activities to characterize and address five-minute peak SO2 levels that may pose risks to sensitive individuals with asthma. 66 FR 1665 (1/9/01).

EPA announced the availability of the Draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-1999 for public review and comment. 66 FR 1674 (1/9/01).

EPA determined that the Reno (Washoe County) Planning Area in Nevada has not attained the annual and 24-hour particulate matter NAAQS for moderate nonattainment areas. 66 FR 1268 (1/8/01).

EPA determined that it will not make changes to the interim final rule of August 7, 2000, that codified and implemented requirements for the Drinking Water State Revolving Fund program. 66 FR 2823 (1/12/01).

EPA approved the use of updated versions of test procedures for the determination of chemical, radiological, and microbiological pollutants and contaminants in wastewater and drinking water. 66 FR 3466 (1/16/01).

EPA made minor revisions to the Interim Enhanced Surface Water Treatment Rule and the Stage 1 Disinfectants and Disinfection Byproducts Rule, which were published December 16, 1998, and the Revisions to State Primacy Requirements to Implement Safe Drinking Water Act Amendments, which were published April 28, 1998. 66 FR 3769 (1/16/01).

EPA announced that it intends to approve revisions to Alabama's public water system supervision program. 66 FR 3580 (1/16/01).

ENERGY CONSERVATION:

DOE adopted, with changes, an interim final rule published on May 19, 1999, to implement the Energy Conservation Reauthorization Act of 1998, which allows fleets that are required to purchase alternative fueled vehicles to meet those requirements, in part, through the use of biodiesel fuel use credits. 66 FR 2207 (1/11/01).

HAZARDOUS AND SOLID WASTE:

EPA proposed to enter into an administrative settlement under CERCLA §122(h) in connection with the Woody Wilson Battery Superfund site in Ashley Heights, N.C. 66 FR 1986 (1/10/01).

EPA entered into a proposed prospective purchaser agreement under CERCLA concerning property that has been potentially contaminated by releases from the Ward Transformer Superfund site in Raleigh, N.C. 66 FR 4026 (1/17/01).

The U.S. Forest Service revised its regulations concerning the management, use, and maintenance of the National Forest Transportation System to help ensure that additions to the National Forest System network of roads are those deemed essential for resource management and use; that construction, reconstruction, and maintenance of roads minimize adverse environmental impacts; and, finally, that unneeded roads are decommissioned and restoration of ecological processes are initiated. 66 FR 3205 (1/12/01).

The U.S. Forest Service adopted a final rule to establish prohibitions on road construction, road reconstruction, and timber harvesting in inventoried roadless areas on National Forest System lands. 66 FR 3243 (1/12/01).

The U.S. Forest Service adopted a final policy governing that National Forest Transportation System. 66 FR 3219 (1/12/01).

USDA adopted an interpretive rule to make explicit its intent regarding the procedures that citizens and entities may use to appeal or object to National Forest System land and resource management plan revisions or amendments subsequent to the recent revisions of the planning regulations at 36 CFR part 219 and the corollary rescission of the appeal regulations at 36 CFR part 217. 66 FR 1864 (1/10/01).

OSHA issued revised employer recordkeeping standards that will become effective Jan. 1, 2002. Among other things, the new standards eliminate different criteria for recording work-related injuries and work-related illnesses; require records to include any work-related injury or illness resulting in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or diagnosis of a significant injury/illness by a physician or other licensed health care professional; and requires a significant degree of aggravation before a preexisting injury or illness becomes recordable. See http://www.osha-slc.gov/recordkeeping/index.html

EPA and the U.S. Army Corps of Engineers amended the CWA §404 regulations defining the term "discharge of dredged material" to establish a rebuttable presumption that mechanized landclearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in waters of the U.S. result in more than incidental fallback, and thus involve a regulable discharge of dredged material. 66 FR 4549 (1/17/01).

EPA proposed to revise and update two regulations that address the manure, wastewater, and other process waters generated by concentrated animal feeding operations on water quality. 66 FR 2959 (1/12/01).

EPA announced the availability of its recommended water quality criterion for methylmercury. 66 FR 1344 (1/8/01).

EPA announced the availability of 17 ecoregional nutrient criteria documents for lakes, reservoirs, rivers, streams, and wetlands within specific geographic regions of the United States. 66 FR 1671 (1/9/01).

EPA announced the availability of the Estuarine and Coastal Marine Waters: Bioassessment and Biocriteria Technical Guidance document developed and published pursuant to CWA §304(a)(8). 66 FR 1674 (1/9/01).

EPA approved the analytical methods for 13 chemical contaminants on the list of contaminants for which monitoring methods are being refined (List 2) under the unregulated contaminant monitoring regulations for public water systems. 66 FR 2273 (1/11/01).

WILDLIFE:

The National Marine Fisheries Service amended the regulations that require most shrimp trawlers to use turtle excluder devices in waters of the Atlantic and Gulf Areas of the United States to reduce the incidental capture of endangered and threatened sea turtles during shrimp trawling. 66 FR 1601 (1/9/01).

FWS proposed to establish, in a policy, a procedure for determining when uses other than the six priority wildlife-dependant recreational uses are appropriate or not appropriate on a unit of the National Wildlife Refuge System. 66 FR 3673 (1/16/01).

FWS issued the final Policy on Maintaining the Biological Integrity, Diversity, and Environmental Health of the National Wildlife Refuge System. 66 FR 3809 (1/16/01).

FWS proposed to adopt a policy articulating the mission of the National Wildlife Refuge System, establishing its goals, and providing guidance for identifying or determining the purpose(s) of individual refuge units within the System. 66 FR 3667 (1/16/01).

FWS proposed to modify its policy for implementing the Wilderness Act of 1964 and the National Wildlife Refuge System Administration Act of 1966 as amended. 66 FR 3708 (16/01).

FWS proposed to adopt a policy that will explain how the agency will provide visitors with high quality hunting, fishing, wildlife observation and photography, and environmental education and interpretation opportunities on units of the National Wildlife Refuge System. 66 FR 3681 (1/16/01).

The President issued Executive Order 13186, Responsibility of Federal Agencies to Protect Migratory Birds, which directs executive departments and agencies to take certain actions to further implement the Migratory Bird Treaty Act. 66 FR 3853 (1/17/01).

U.S. v. City of Mandeville, La., No. 00-366 (E.D. La. Dec. 12, 2000) (a settling CWA defendant that operates a public sewage treatment plant must pay a $56,500 civil penalty, must perform injunctive relief to come into compliance with the CWA, and must comply with interim limits for the discharge of ammonia-nitrogen, biochemical oxygen demand, and total suspended solids from its plant), 66 FR 2445 (1/11/01);

H.R. 104 (Hayworth, R-Ariz.) (Native American lands) would repeal the Bennet Freeze thus ending a gross treaty violation with the Navajo Nation and allowing the Navajo Nation to live in habitable dwellings and raise their living conditions. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 105 (Hayworth, R-Ariz) (regulatory reform) would require Congress and the President to fulfill their constitutional duty to take personal responsibility for federal laws. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on the Judiciary, and Rules.

H.R. 108 (Hefley, R-Co.) (fishing) would establish a moratorium on bottom trawling and use of other mobile fishing gear on the seabed in certain areas off the coast of the United States. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 109 (Hefley, R-Co.) (CWA) would amend the CWA to provide for the use of biological monitoring and whole effluent toxicity tests in connection with POTWs, municipal separate storm sewer systems, and municipal combined sewer overflows. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Transportation and Infrastructure.

H.R. 110 (Hefley, R-Col.) (taxes; conservation) would amend the Internal Revenue Code of 1986 to provide a credit against income tax for certain charitable conservation contributions of land by small farmers and ranchers. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Ways and Means.

H.R. 111 (Holt, D-N.J.) (FIFRA) would amend FIFRA to require local educational agencies and schools to implement integrated pest management systems to minimize the use of pesticides in schools and to provide parents, guardians, and employees with notice of the use of pesticides in schools. 147 CONG. REC. H59 (Jan. 6, 2001). The bill was referred to the Committee on Agriculture.

H.R. 115 (Holt, D-N.J.) (biotechnology; agriculture) would provide for a program to educate the public regarding the use of biotechnology in producing food for human consumption, and to support additional scientific research regarding the potential economic and environmental risks and benefits of using biotechnology to produce food. 147 CONG. REC. H59 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on Agriculture, and Energy and Commerce.

H.R. 131 (Miller, R-Cal.) (water resources) would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Inland Empire regional water recycling project, to authorize the Secretary to carry out a program to assist agencies in projects to construct regional brine lines in California, and to authorize the Secretary to participate in the Lower Chino Dairy Area desalination demonstration and reclamation project. 146 CONG. REC. H60 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 144 (Oberstar, D-Minn.) (pipeline safety) would amend title 49, United States Code, to require periodic inspections of pipelines and improve the safety of our nation's pipeline system. 147 CONG. REC. H60 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on Transportation and Infrastructure, and Energy and Commerce.

H.R. 146 (Pascrell, D-N.J.) (Great Falls Historic District) would authorize the Secretary of the Interior to study the suitability and feasibility of designating the Great Falls Historic District in Paterson, New Jersey, as a unit of the National Park System. 147 CONG. REC. H60 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 158 (Regula, R-Ohio) (Mount McKinley) would provide for the retention of the name of Mount McKinley. 147 CONG. REC. H61 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 172 (Serrano, D-N.Y.) (food safety) would amend the Food, Drug, and Cosmetic Act and the egg, meat, and poultry inspection laws to ensure that consumers receive notification regarding food products produced from crops, livestock, or poultry raised on land on which sewage sludge was applied. 146 CONG. REC. H61 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on Energy and Commerce, and Agriculture,

H.R. 176 (Shadegg, R-Ariz.) (land exchange) would provide for the implementation of the agreement between the Secretary of the Interior and the Governor of Arizona to facilitate a land exchange of federal and state lands between the United States and the state of Arizona pending a state referendum regarding the agreement in 2002. 147 CONG. REC. H61 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 182 (Simmons, R-Ct.) (rivers) would amend the Wild and Scenic Rivers Act to designate a segment of the Eight Mile River in Connecticut for study for potential addition to the National Wild and Scenic Rivers System. 147 CONG. REC. H61 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

H.R. 183 (Slaughter, D-N.Y.) (environmental health) would amend the Public Health Service Act to provide for awards by the National Institute of Environmental Health Sciences to develop and operate multidisciplinary research centers regarding the impact of environmental factors on women's health and disease prevention. 147 CONG. REC. H62 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Energy and Commerce.

H.R. 187 (Slaughter, D-N.Y.) (environmental regulation of small communities) would enhance the services provided by EPA to small communities that are attempting to comply with national, state, and local environmental regulations. 147 CONG. REC. H62 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.

H.R. 212 (Sweeney, R-N.Y.) (takings) would ensure that federal agencies establish the appropriate procedures for assessing whether or not federal regulations might result in the taking of private property, and to direct the Secretary of Agriculture to report to the Congress with respect to such takings under programs of the USDA. 147 CONG. REC. H62 (daily ed. Jan. 6, 2001). The bill was referred to the Committees on the Judiciary, and Agriculture.

H.R. 223 (Udall, D-Colo.) (land transfer) would amend the Clear Creek County, Colorado, Public Lands Transfer Act of 1993 to provide additional time for Clear Creek County to dispose of certain lands transferred to the county under the Act. 147 CONG. REC. H62 (daily ed. Jan. 6, 2001). The bill was referred to the Committee on Resources.

Jan. 23, 2001, workshop will discuss proposed amendments to address the transfer of air permits and to introduce a new Transfer of Air Permit Form, incorporate general conditions for all non-Title V air general permits, and add a new general permit for nonmetallic mineral processing plants.

South Florida Water Management District

Proposed Regulations-Everglades Phosphorus Load

Proposed regulations will implement the Everglades Forever Act by mandating a 25% reduction in the total phosphorus load discharged from the Everglades Agricultural Area. See http://www.sfwmd.gov.rules

Amends 326 IAC 15-1-2 concerning source-specific provisions for the control of lead emissions. Amends 326 IAC 15-1-3 concerning control of fugitive lead dust. Adds 326 IAC 20-13 concerning national emissions standards for hazardous air pollutants for secondary lead smelters.

Amends 327 IAC 8-2 concerning amendments to 327 IAC 8-2 concerning lead and copper. On January 12, 2000, U.S. EPA published national primary drinking water regulations for lead and copper. These regulations make changes to the lead and copper rule as published June 7, 1991. These minor revisions are being made to improve implementation of the rule. The intended effect of the rule is to eliminate unnecessary requirements, streamline and reduce reporting burden, and promote consistent national implementation of the federal rule. Indiana is required to adopt these revisions in order to maintain primacy (primary enforcement authority) for the lead and copper rule.

Proposed Regulations-Solid Waste

329 IAC 7, regarding the Indiana Scoring Model and the assessment of hazardous substance response sites. This rule will reconsider the maximum score to allow sites to be deleted from the Commissioner's Bulletin. This rule will also consider appropriate criteria or designation for the deletion of sites from the Commissioner's Bulletin as an alternative to using the maximum score for deleting a site.

Proposed amendments to petroleum liquid storage, loading and transfer standards for the Kansas City Metropolitan Area (10 CSR 10-2.260), to ensure consistency with 10 CSR 10-5.220. Public hearing Feb. 6; written comments due Feb. 13. See http://mosl.sos.state.mo.us/moreg/2001/v26n1/v26n1b.pdf

The Worldwatch Institute, in its "State of the World 2001," decried a loss of political momentum to deal with pressing global environmental problems. It cited the failed November climate change talks as an example of "the current climate of political and economic uncertainty," and warned that there is a threat that "decades of progress could unravel." Few positive developments were noted. See http://www.worldwatch.org

The United Nations altered its personnel, those positioned in the Balkans, to avoid contact with fragments of munitions that may have contained depleted uranium. However, U.N. Assistant Secretary-General for Human Resources Rafiah Salim said there is "very little scientific evidence to suggest that there is a risk" of contracting leukemia. NATO, UNEP, and the World Health Organization are among the groups investigating claims of health risks. See http://www.un.org/News/dh/latest/page2.html#14 NATO issued a report contending that there is no evidence of a relationship between depleted uranium and so-called "Balkan syndrome" illnesses or complaints, including leukemia.

Outgoing U.S. Trade Representative Charlene Barshefsky announced a planned interagency review of the potential environmental ramifications of World Trade Organization talks to reduce trade barriers in services and agricultural products, pursuant to Executive Order 13141 (1999). An environmental review of the recent U.S.-Jordan Free Trade Agreement is ongoing, as are reviews of pending agreements for inter-American trade and for trade with Chile and Singapore. Chile has indicated its opposition to the inclusion of provisions specifically relating to labor or environmental protections.

The journal Electricity Daily, citing Japanese officials, reported that "secret" climate change discussions might occur next month in New Zealand, involving Japan, U.S., and several other non-European industrialized countries. Japan will seek an international agreement to reduce greenhouse gas emissions from civil air transport and oceangoing vessels.

The U.N. Intergovernmental Panel on Climate Change working group began a meeting in Shanghai that will be marked by the release of an extensive new report on climate change. See http://www.ipcc.ch/press/pr16-01.htm

The Association of Small Island States urged the U.S. and Europe to act quickly on climate change developments. AOSIS President Tuiloma Neroni Slade of Samoa said that "(r)isingsea levels have already affected many of our members, leading to loss of preciousland and affecting the local economies." The island states have "very little responsibility for the emission of greenhouse gases, which lead to global climate change, yet we are the first to feel the impact of a condition caused primarily by the unsustainable use of energy and the emissions by developed nations."

A study published in Nature suggests that droughts caused by global warming could accelerate climate change by promoting a biochemical process in northern soils that cause significant amounts of carbon dioxide to be released into the atmosphere.

German Chancellor Gerhard Schroeder, responding to the "mad cow" crisis, handed over responsibility for food safety and agriculture to the Green Party, his coalition partner. Renate Kuenast of the Greens was named agriculture minister.

Japan was pleased, but numerous other nations and environmental groups deeply disappointed, with Norway's decision to end a self-imposed ban on the export of whale meat and blubber. Norwegian Foreign Minister Thorbjoern Jagland argued that the hunted species were sufficient in number in justify meat export, and denied the claim that the decision was made on economic grounds. See http://news.bbc.co.uk/hi/english/world/europe/newsid_1121000/1121654.stm Norway recommenced whale hunts in 1993.

A new European Union environmental directive, Directive 2000/76/EC, strengthens standards applicable to municipal waste incineration. New plants will be affected by the new standards as of Dec. 28, 2002; existing ones by Dec. 28, 2005. Another new directive, 2000/59/EC, concerns ocean discharges of ship-generated waste.

The U.K. "Proposed Amendments to the Pollution Prevention and Control (England and Wales) Regulations 2000, SI 1973 Consultation Paper" would, if adopted, strengthen air, water, and waste management standards applicable to several industries, including tire manufacturing and wood processing plants. Comments are due by Jan. 31. See http://www.environment.detr.gov.uk/consult/ppc2000/si1973/01.htm

The European Union agreed to voluntary guidelines to encourage governments to monitor and ensure their industries meet environmental standards, but odds are not good that the standards will be made mandatory. See http://www.planetark.org/dailynewsstory.cfm?newsid=9488 Caroline Jackson, chair of the European Parliament's Environment Committee, argued that more expeditious enforcement against noncomplying EU states is necessary, pointing out that a case against Greece for violations of landfill standards took 19 years to be resolved. She said that "environmental laws are ignored, targets are not met, reports are not timely submitted, and countries which break the law go unpunished." According to Environment Commissioner Margot Wallstrom, almost half of all allegations of violation received by the European Commission relate to environmental standards.

European Trade Commissioner Pascal Lamy said it is likely that all agricultural subsidies, save for those necessary for food safety or environmental reasons, will be phased out during this decade.

France's Transport Minister said that the owners of the sunken cargo vessel "Ievoli Sun" will be responsible for pumping out and managing the 6,000 tons of toxic chemicals onboard.

Hungary and Romania have requested U.S. $10 million in aid from the European Union to address measures to prevent further cyanide releases into shared waterways.

Officials in the Brazilian state of Amapa acknowledged that arsenic runoff from a now-closed mining operation has seriously contaminated three Amazon river tributaries. Although at least 100 cases of poisoning have been reported, no deaths have been attributed to the pollution to date.

Over 700 people died as a result of a strong earthquake in El Salvador. Some claimed that the earthquake's effects were magnified because of significant deforestation in the affected areas.

Columbia's army accused both left- and right-wing guerillas and paramilitary groups of callous disregard of the environment.

A court in Argentina blocked a British ship carrying nuclear waste from France to Japan from entering the country's waters. Meanwhile, Britain is considering whether to reopen the controversial and scandal-ridden Sellafield plant.

ASIA

Taiwan's supreme court ruled that President Chen Shui-bian acted illegally in halting construction of a controversial nuclear power plant. The plant has become a symbol of political differences between Chen's party and the Nationalists, who support the plant and continue to control the legislature.

The U.S. and Japan, as a result of a visit to Tokyo by U.S. Commerce Secretary Norman Mineta, agreed to ask the International Whaling Commission to examine lethal and nonlethal methods of studying whales and to convene a workshop on research whaling. The U.S., of course, has previously argued that Japan is not engaged in "research" whaling at all, arguing that what has actually occurred is prohibited hunting. Whale meat is an expensive and sought-after delicacy in Japan. Japanese Agriculture Minister Yoshio Yatsu said that "(t)he issue must be resolved based on international laws as well as objective standards. . . . It should not be dealt with emotionally."

China, thanks to a World Bank grant, began the manufacture of hydrofluorocarbon-134a as a replacement for chlorofluorocarbon-12.

Stricter environmental laws could be on the books in China by next summer, although implementation and enforcement are another matter. The National People's Congress took the first step toward the enactment of more stringent controls.

Fishermen in Hong Kong protested against dredging for a Disney theme park and a new container terminal, arguing that "the fish don't come anymore because of the dredging work." Fish stocks off of Hong Kong have fallen dramatically, by at least 80%, in the last year. The government has already paid limited compensation to affected fishermen.